Many Marital Settlement Agreements or Judgments of Divorce contain a provision that alimony will terminate upon the recipient’s cohabitation in a manner analogous or tantamount to a remarriage.
   
     In most instances, that provision further provides that cohabitation must be with an unrelated adult of the opposite sex.

    The purpose of such provision is not to pass moral judgment upon a person’s lifestyle choices, but to prevent the inequity of a person manipulating the intent and purpose of alimony by living in an arrangement that is tantamount to a remarriage, while not marrying their partner solely to prevent a termination of their alimony.

    Our Courts have consistently ruled that a former spouse’s payments of alimony should not be used to support a new partner or, conversely, may no longer be necessary if the recipient is being supported by a new partner.

     Now that New Jersey has adopted legislation which enables same sex couples to register as a Domestic Partnership and/or to enter into a Civil Union, the same issue arises, as it has in several other states with conflicting results, as to whether or not a Domestic Partnership or Civil Union is a “cohabitation analogous to the remarriage.”
 
    The issue is further compounded by the argument that a heterosexual person may remarry, but simply chooses not to do so in order to continue their alimony.  On the other hand, a same sex couple does not yet have that option.

     A recently widely reported case from the State of Oregon held that an ex-husband was obligated to continue the payment of alimony to his ex-wife notwithstanding her admitted cohabitation with a domestic partner.  In that case, the Court apparently reasoned that such cohabitation is not analogous to remarriage, and that a Domestic Partnership was something much different than a marriage. 

    However, in a recent Virginia Appellate Court decision, the Court reached the opposite conclusion and found that an ex-wife who was cohabiting with another woman in a Civil Union had, in fact, entered into a relationship “analogous to remarriage” and terminated her alimony.

    In the Virginia case, the Court focused on the term “analogous” which it reasoned means that something is “in many ways similar to,” but not necessarily identical to something else.

    Specifically, it found that a relationship which involved actual cohabitation, had a romantic component, had the legal status of a Civil Union and had an intention of permanency was in all significant respects analogous to a marriage.

    There does not appear to be any reported case in any state specifically discussing a contractual provision that the cohabitation must be with a person of the opposite sex.  However, it could arguably be assumed that if New Jersey Appellate Courts ultimately find that a Domestic Partnership or Civil Union is “analogous” to a marriage as did the Virginia Appellate Court, they may well find that the imposition of the requirement that the cohabitation with a person of the opposite gender may be violative of the equal protection clause of the United States Constitution.

    Although New Jersey was one of the first states to authorize Civil Unions between same sex couples, it has not yet had a reported Appellate Division case discussing the impact of a Domestic Partnership or Civil Union on the person’s existing right to alimony from a prior marriage. 
 
    While it is dangerous ground to predict what an Appellate Court may ultimately decide on such an important policy issue, it is likely, given the social philosophy expressed by our Legislature in the Domestic Partnership and Civil Union statutes, that our Courts may look to the substance of the relationship and disregard the form as to whether it is a marriage, Domestic Partnership or Civil Union and/or the gender of its participants.
  
    For those Agreements and Judgments which are in place, there is little, if anything, which can be done until there is an Appellate Decision on the subject. 
  
    However, for persons who are currently in the process of divorce and will be making or receiving payments of alimony, care should be taken in drafting the language of the Settlement Agreement or Judgment of Divorce.
   
     Certainly, the potential payor of alimony should insist that any cohabitation including a Domestic Partnership or Civil Union will terminate alimony.
   
     Issues, also, frequently arise regarding the duration of the cohabitation and whether or not cohabitation for a relatively short period of time should terminate existing alimony.  From an alimony recipient’s perspective, a brief ill-conceived or immaturely terminated cohabitation should not terminate alimony from a prior long term marriage.  Obviously, the converse is true from an alimony payor’s perspective.
 
    Careful negotiation and drafting of an Agreement requires, at the very least, a statement of the parties’ intention with regard to cohabitation and/or the termination of alimony.  Is it their intention that any cohabitation of whatever nature and with whatever gender qualifies as a terminating event?
   
     As society changes, concepts such as Domestic Partnerships and Civil Unions become a reality, so should well advised and thoughtful divorce litigants anticipate such future changes and specifically craft their divorce Agreements so as to avoid unnecessary future expense and litigation over issues which could be negotiated and specifically resolved at the time of their divorce.